Majority
Headnote
Ikdictment „ tor Assault to Commit Bate.—Art indictment charging the defendant with" an assault with the intent to commit a rape need not strictly follow the language of the statute in describing the offense, but words conveying the same meaning may be employed.The indictment states that the defendant “ did willfully, feloniously, and of his malice aforethought commit an assault upon the person of Caroline Waldfogal, with intent her, the said Caroline Waldfogal, then and there to rape.” The demurrer, on the ground, among others, that the facts stated in the indictment do not constitute a public offense, was overruled.
The Penal Code, sec. 220, provides that “ every person who assaults another, with intent to commit rape,” is punishable as therein provided. But the offense is not particularly described.
It has repeatedly been held that an indictment is sufficient if it describe the offense charged in the language of the statute. (See People v. Shaber, 32 Cal. 36 ; People v. White, 34 Cal. 183 ; People v. Potter, 34 Cal. 114 .) It would have been sufficient, according to the authority of those cases, to have described the intent in the language of the statute—that is to say, to have alleged the.felonious assault, “with the intent then and there upon the person of the said Caroline Waldfogal to commit a rape.” In People v. Potter, supra, it is said that it is not necessary to follow strictly the language of the statute by which
J udgment and order affirmed.
Cases cited
- People v. Shaber 32 Cal. 36 p. 629
- People v. White 34 Cal. 183 p. 629